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World Court Rules Against U.S. for Consular Notification Failures

by Matthew T. Clarke

On March 31, 2004, the International Court of Justice (also known as the World Court) held that the United States was in violation of the Vienna Convention on Consular Relations (VCCR).

The case was brought by Mexico on behalf of 52 of its nationals who are on various death rows throughout the United States awaiting execution. Mexico claimed that the U.S. was in violation of three paragraphs of Article 36 of the VCCR. Article 36 is entitled "Communications and contact with nationals of the sending state."

Paragraph 1(b) of Article 36 states that, if a national of the sending state "is arrested or committed to prison or to custody pending trial or is detained in any other manner," and so requests, the local consular post is to be notified. It also requires that officials of the receiving state "inform the person concerned without delay of his rights." In this case, it essentially required U.S. officials to inform arrested or otherwise detained Mexican nationals of their right to notify Mexican consular officials of their situation and, if the Mexican national requests it, to so notify the consular officials.

Paragraph 1(a) of Article 36 required the U.S. to allow free access and communication between Mexican consular officials and Mexican nationals in detention. Paragraph 1(c) of Article 36 gives Mexican consular officials the right to visit detained nationals, to converse and correspond with them, and arrange for their legal representation unless the Mexican national expressly opposes it. Mexico alleged that, in the cases of the 52 nationals whose consular' notification rights were delayed or ignored, the associated rights to communication, access, visits, and to arrange representation were also violated.

Mexico's position was that the only just remedy would be reversal of the convictions and retrial with any evidence collected prior to the consular notification being excluded from the new trial.

The World Court overruled all of the United State's objections to its jurisdiction and ruled in Mexico's favor, holding that the United States had violated Article 36, paragraph 1(b) by not informing 51 of the Mexican nationals of their consular rights without delay upon their detention and by not notifying the appropriate Mexican consular post of the detention of 49 Mexican nationals without delay. The World Court also held that the United States deprived Mexico of its Article 36, paragraphs 1(a) and (c) rights to, in a timely fashion, communicate with, have access to, and visit 49 of its detained nationals. The World Court also found that, in the case of 34 Mexican nationals, the United States deprived Mexico of its Article 36, paragraph 1(c) right to arrange legal representation for its detained nationals in a timely fashion.

In the cases of Cesar Fierro, Roberto Ramos, and Osbaldo Aguilera Torres, three Mexican nationals whose judicial review process had been exhausted, the World Court held that the United States had violated its Article 36, paragraph 2 obligation to provide review and reconsideration of the criminal cases in light of the rights set forth in the VCCR and their violation. The World Court instructed the United States to provide review and reconsideration by a judicial court. In November, 2003, the U.S. Supreme Court refused to hear an appeal by Torres based upon the Vienna Convention.

Because the other Mexican nationals had not yet exhausted all judicial remedies, the World Court did not rule that the United States had breached its obligations to provide review and reconsideration in their cases. However, the World Court did order the United States to provide review and reconsideration by a method of its own choosing for all future breaches of the VCCR. The World Court specifically rejected the contention of the United States that the clemency process was sufficient to provide appropriate review and reconsideration. It also rejected Mexico's contention that the World Court should order the cases reversed for a new trial with the evidence obtained in violation of the VCCR excluded from the new trial.

The World Court praised the United States for the efforts it has made to implement the VCCR by initiating an outreach program in 1998 and distributing to federal, state, and local law enforcement personnel a booklet on VCCR rights and obligations.

The World court emphasized that its ruling applies to all foreign nationals detained in the United States not just Mexican nationals. There are 121 foreign nationals on death row in the United States; only 55 of them are Mexican nationals. This issue came before the World Court in 2001 in the case of two German nationals, the LaGrand brothers, who were on Arizona's death row. One brother was executed before the court could act and the other brother was executed despite a stay of execution issued by the World Court. At that time, the World Court strongly criticized the United States for not stopping the executions. It also rejected the federal government's contention that it could not intervene in the individual States' criminal justice processes. Now the question is whether Washington will accept this ruling or continue with the fiction that it cannot persuade the States to honor national obligations under international treaties. See: Case Concerning Avena and Other Mexican Nationals (Mexico v. United States), International Court of Justice, General List No. 128 (3-31-06).

Additional Sources: Associated Press; Merced Sun-Star.

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Related legal case

Case Concerning Avena (Mexico v. United States)